Colorado law enforcement grapples with reality of legal pot

9 a.m. is generally too early for a toking circle, but the questions floating around a nondescript conference room on the outskirts of Denver Wednesday morning were at times a lot like Zen koans that are typically debated only by people who are very stoned.

Isn’t a fence really just an outdoor wall? If you hike 10 miles into the forest to smoke a joint, are you “in public”? What does it mean to be enclosed? These are the questions being considered by the Criminal Law Working Group, an offshoot of the Amendment 64 Task Force, appointed by Colorado Gov. John Hickenlooper to recommend to lawmakers a roadmap for implementing a system for legalized marijuana.

Colorado voters approved legal pot in November.

It is clearly no small effort. The main task force has split into smaller working groups to tackle a variety of policy areas touched by the new law, from developing a regulatory framework to dealing with consumer safety to tweaking existing criminal laws to comport with the marijuana amendment.

“What everyone here is tasked with is entirely unreasonable,” said working group chairman Brian Connors, acknowledgment of the overwhelming nature of the task.

The task force has until the end of February to submit its recommendations to the legislature and the governor’s office.

They were particularly stumped when considering scenarios in which officers might be confronted with pot gardens that they suspect exceed the number of plants allowed under current law and under potential future regulations on commercial grows.

Amendment 64 not only protects legal growers from arrest, but also from asset seizure, meaning that if a defendant later proves his growing operation complied with the law, cops are liable for any plants they may have seized.

In practice, the rule would mean that police departments would have to care for the plants and return them if a defendant prevails in court.

Larimer County District Attorney Larry Abrahamson, one of the working group members, noted that in these scenarios, police would be violating federal laws prohibiting marijuana cultivation and distribution.

Allowing the plants to die in an evidence room could lead to a lawsuit for the value of the plant if the defendant prevailed in court. One panel member wondered if paying a settlement in such an instance could be considered an ex post facto pot purchase, which, of course, is also illegal under federal law.

Conflicting state and federal laws are only part of what law enforcement agencies need to deal with under Colorado’s new law; another is simply adjusting to the fact that what is illegal practically everywhere else in the world is legal here.

“The hard part for me is rewiring everything we know about [marijuana] law enforcement,” Greenwood Village Police Chief John Jackson said during a break.

Law enforcement representatives on the working group also argued for placing limits on the amount of marijuana personal growers could stockpile in their homes, a proposal that panel member Genifer Murray, the CEO of marijuana testing facility CannLabs, likened to limiting how many cans of home-grown tomatoes a gardener could keep in the pantry.

Law enforcement representatives also initially resisted a suggestion that would make first-time possession of less than an ounce of marijuana by minors a civil rather than criminal offense. Some were worried that one-time indiscretions by young people would disproportionally penalize them later in life, such as when applying for college or for federal student loans.

But others weren’t so fast to let them off the hook.

“Law enforcement is not going to be jumping on the bandwagon of decriminalization” for minors, Jackson said.

Abrahamson agreed, saying he didn’t “want to send the message that we’re watering this down for kids.”

But Charles Garcia, representing the Colorado Commission on Criminal and Juvenile Justice, argued that civil penalties and drug education — which wouldn’t appear on criminal records — are appropriate for first offenders caught with a joint in their pocket.

“If we are, in Amendment 64, really serious about education, and I hope we are, why don’t we use this as an educational tool?” he said. The working group eventually agreed to recommend to the task force as a whole that first-time minor-in-possession charges result in a civil summons.